Copyright protection attaches to original works of authorship fixed in any tangible medium of expression now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device. 17 U.S.C. §102. Software is a work of authorship. It is classified as a literary work under 17 U.S.C. §101. It can be copyrighted. This article attempts to answer the question of how to register a copyright for software.
Copyright protection for a computer program extends to all of the copyrightable expression embodied in the program. The copyrightlaw does not protect the functional aspects of a computer program, such as the program’s algorithms, formatting, functions, logic, or system design. (Note as discussed below, however, the display of the software, i.e., screen shot “look & feel” can be copyrighted.)
First, a copyright is created from the moment a work of authorship is reduced to tangible medium, e.g., paper or reproducible computer code. Therefore I recommend that your place a copyright notice of the first page that is visible on your code. This would include the splash page. The notice is simply “Copyright Albert Einstein, 2019” or “© Albert Einstein, 2019”.
Note that placing this copyright notice will prevent a person from claiming “innocent infringement”, i.e., the infringer did not know the work was copyrighted. (Innocent infringement does not excuse the infringement, but may significantly decrease the liability for monetary damages. A registered copyright cannot be innocently infringed.)
Registering your copyright with the US Copyright Office (part of the Library of Congress) is a separate step. It is relatively easy and inexpensive. It can be done on line via “eCO”. The filing fee is $35.00.
One requirement of registering a copyrighted work is that a copy or image of the work must be deposited with the Copyright Office. Again, it is possible to deposit the copy or the software electronically. Note that you do not need to deposit a copy of the entire code (see below).
Note that an application to register a work for copyright should be made prior to publication of the work or within 3 months after the first publication. Publication is an unrestricted showing or sale of the work. It is important to file for registration prior to the first publication of the work.
It is likely that your software program contains algorithms that you want to keep as proprietary or trade secrets. If your program does contain trade secrets, you must file a note stating that the code contains trade secrets. In that event, you are required only to deposit only the first and last 10 pages of source code, provided that none of those pages contain trade secrets. You can also send or any10 consecutive pages of source code without trade secrets and the first and last 25 pages of object code. Another option is to send the first and last 25 pages of source code or all the source code if it runs less than 50 pages, with the source code containing your proprietary information redacted, i.e., blocked out.
Finally, If the source code for the entire program is fewer than fifty pages, one copy of the entire code, blocking out the portions of the code containing trade secret material, providedthe blocked out portions represent less than fifty percent of the deposit; or
If the source code does not have a precise beginning, middle, or end, twenty to fifty pages that reasonably represent the first and last portions of the code.
Note also the first 25 page and last 25 page requirement applies even if your source code does not contain proprietary of trade secret information.
Agreements for Creation of Software
Often software is created by a third party software developer. As a general matter, the person that created the work is the copyright owner. This person is termed the “author”. However, if the work was made by an employee, the employer is deemed to be the owner of the copyright.
It is important that you have a written agreement with a third party developer (non-employee) stipulating that you, the party paying for the software creation, are to retain the ownership of the copyright in the software. This can be accomplished by written stipulation that the work product, i.e., the software, is a “work for hire”. It is critical to use these exact words.
Also it is recommended that the contract stipulate that you, the owner, receive the source code, including all routine “sub-files”. (This is intended to include also standard files the developer may routinely use to have software perform standardized tasks.)
Registration and Statutory Damages
There are very real advantages to registering your copyright. Perhaps the most important is the ability to claim statutory damages in the event of copyright infringement. It is not necessary to prove actual damages in order to claim statutory damages. Statutory damages can be as great as $150,000.00 for a single intentional infringement. Your entitlement to minimum damages without showing actual loss creates a large incentive for the potential infringer to not copy your work.
Again, statutory damages are available if the copyright was registered prior to the infringement. As a general matter, copyright registration should be commenced no later than 3 months after the work is published.
It is sometimes recommended that non-functioning pieces of code be inserted into the source code. Since they are non-functioning, they do not alter performance of the code. However if these same pieces of code (sometimes termed “canary’s”) appear in a competitor’s code, it can be strong evidence that the competitor has copied your code.
Note that screen shots can also be copyrighted. This can provide protection for the “look and feel” of your displayed software.
Although there are real limitations to the scope of protection that can be offered by copyrighting a work product, it should not be ignored. Copyrighting software has real advantages. It can be another “barrier to entry” that can protect against unfair encroachment of your market by competitors. Therefore, don’t forget to insert a copyright notice as part of the opening page of your software. Also register the copyright. Note you don’t need to disclose trade secrets or proprietary algorithms.
© David McEwing, 2019